Washbourne v QBE (Insurance) Australia Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Washbourne v QBE (Insurance) Australia Limited [2025] NSWPIC 334
CLAIMANT:	Daniel Washbourne
INSURER:	QBE (Insurance) Australia Limited
MEMBER:	Terence O'Riain
DATE OF DECISION:	10 July 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages; liability not disputed; physical and psychiatric/psychological injuries; claim for non-economic loss; past and future economic loss; consideration of medico-legal examinations, treating evidence, rehabilitation, vocational assessments and lay evidence; history of heavy physical labour; credit; exaggeration of disabilities and fabrication alleged; enthusiastic application to rehabilitation; bilateral loss of partial use of upper extremities and continuing cervical spine pain; claimant has not returned to work after attempted return with son as unpaid assistant; low education and dependent on physical strength; unsophisticated; Briginshaw v Briginshaw considered; continuing loss of earning capacity; consideration and application of section 4.7; Held – claimant is witness of credit; no in demand skills and experience without physical capacity; residual earning capacity cannot be practicably exercised; damages assessed for non-economic loss, past economic loss as weekly loss and future economic loss calculated on 15% vicissitudes discount; claimant’s legal costs and disbursements assessed.
DETERMINATIONS MADE:	Issued under s 7.36(1) of the Motor Accident Injuries Act*2017* *Assessment of claim for damages* 1. The insurer admits it owed a duty of care to the claimant, breached that duty of care, and the claimant sustained injury loss and damage because of that breach of duty. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the MAI Act), I assess the amount of damages for this claim as $1,451,619.24. 3. The amount of the claimant’s costs, considering the amount of damages assessed in respect of this claim and in accordance with the MAI Act, is $99,459.42 inclusive of GST. 4. Attached to this certificate are reasons for my assessment.

REASONS

On 10 April 2025, I assessed 50-year-old Daniel Washbourne’s (claimant) claim for damages arising from the motor vehicle accident on 12 December 2019 (the accident).

Jurisdiction

Mr Washbourne’s application to assess damages is made under the Motor Accident Injuries Act2017 (the MAI Act).
Mr Washbourne served his claim for common law damages under s 6.14 of the MAI Act within three years of the accident, and the insurer admitted breach of duty of care in a s 6.20 notice.
The rules of evidence do not apply to this assessment. I may investigate any matter relevant to the issues in dispute in such a manner, subject to providing procedural fairness to the parties.

BACKGROUND

Reviewing Mr Washbourne’s statements dated 2 December 2022, 10 July 2023,
18 February 2025 and 3 April 2025 and further information provided I read that he is an indigenous Australian man who was working as a meat carter/delivery driver on
12 December 2019. His employer was identified as SCF Cartage Pty Ltd (SCF).
His duties included driving a truck loaded with meat to various locations where he would manually handle meat cut into pieces in boxes and as sides of meat from the truck parked in the street and delivering it to suburban butcher shops. He was required to unload the truck by extracting a metal walk tray from underneath the truck to get access to the meat and would carry the loads down the sloping tray.
On a typical day he estimated he would deliver approximately 3,000 to 5,000kg of meat. This was supported by his job records.
He says he worked a day beginning at approximately 4.00am and would finish between 3.00pm to 6.00pm. Deliveries were made to 18 to 25 shops on each run all over Sydney.
Despite being heavy work, he worked without restrictions. He was pain-free in the shoulders and neck.
From early childhood up to 2019 he had enjoyed manual work and sport. He had played junior rugby league, progressed towards an elite level as a young man and intended to keep playing at the Masters’ level.
The accident happened after he parked his truck in a lane behind the butcher shop and began a delivery. There was an argument with the insured driver about the claimant’s truck temporarily blocking the lane. That driver propelled his truck into the claimant while he was carrying a load, which knocked him off his feet causing him to fall heavily to the ground on his left shoulder with the meat on top of him. He immediately felt pain in his right shoulder. The pain he felt was so great it was difficult to move.
There is some variation in reports about how the injury happened which the insurer refers to in its submissions, but the police report and prosecution brief against its insured marked C 73789429, records that Mr Washbourne had,
“pulled the metal walk tray out. The metal tray was 3/4 out way before, the (insured) drove his tipper truck right up to the rear of the refrigerated truck and yelled out "move your truck". The victim was between the metal tray and the tipper truck, saw the tipper truck still rolling forward, moved out of the way before the front of the tipper truck came into the contact with the metal tray…The victim jumped out of the refrigerated truck with 3 bags of meat and walked past the tipper truck to get to the butcher. As the victim got in front, the (insured) drove his vehicle forward where the front collided into the right shoulder of the victim. The impact knocked the victim over onto the floor where he felt immediate pain. The witness contacted police before he helped the victim up and to the side and waited for police.”
The police file also includes photographs of the accident location and the vehicles involved.
This account was included in the fact sheet in the negligent driving prosecution that the insured driver pleaded guilty to at Fairfield Local Court on 4 August 2020, which settled the circumstances of the accident as being the insured driver’s fault and that the claimant fell to the tarmac of the road on his left shoulder while carrying a load.
The insurer’s submissions concede that based on the Medical Review Panel’s findings on
25 July 2024 it now accepts that the accident caused the claimant’s disabling neck and shoulder injuries. Up to that point the insurer disputed a nexus between the accident and those conditions.
Police and an ambulance were called but despite an ambulance officer advising him to go to hospital, his boss pressured him over the phone to finish the delivery route. When the claimant eventually convinced the boss that he could not complete the deliveries the boss agreed to relieve the claimant if he drove the truck somewhere where another worker could take over. The claimant did so, but no one attended on him and the boss ordered him to drive to another location and he was able to leave work that day.
His boss also pressured him not to make a workers compensation claim, but to rely on CTP insurance. The claimant lodged an application for personal injury benefits dated
22 January 2020.
As the s 3.35 of the MAI Act bars recovery of CTP statutory benefits when an injured person could access workers compensation statutory benefits, the claimant’s employer’s workers compensation insurer eventually took on the treatment, rehabilitation and weekly compensation the claimant required. However, this early claim meant that this insurer was aware of the claimant’s injuries soon after the accident.
His alleged physical and psychiatric injuries from this accident can be summarised as being:
(a)    soft tissue injury to the cervical spine, with aggravation of pre-existing degenerative changes;
(b)    bilateral shoulders soft tissue injuries requiring surgery to acute labral tears, with aggravated pre-existing changes;
(c)    post-surgical scarring;
(d)    disfigurement;
(e)    persistent depressive disorder;
(f)    persistent major depressive episode(s);
(g)    anxious distress, and
(h)    some post-traumatic stress disorder like symptoms relating to the nature of the injury.
He was initially off work on his doctor's advice due to pain but had to return to work before Christmas. His request for lighter duties was refused, and he was forced to enlist his school-age son to help him with deliveries. That arrangement only lasted during school holidays.
He attempted to maintain his work capacity including attending rehabilitation, but he learned his SCF boss sacked him on 6 March 2020. That news arrived via a notice from the workers compensation insurer. He has not worked since that time.
He expected to recover because of his innate fitness and strength, but despite two shoulder operations and extensive rehabilitation, his medical advisors have told him he cannot return to the type of work he was used to.
By 2022 his weight had shrunk from 103kg to 88kg. He has lost muscle tone and bulk, which he regards as disfiguring. He has been suicidal, depressed, overemotional and tearful. He cannot perform domestic duties.
His sleep was interrupted because of pain in his shoulders which woke him when he moves on his side.
He has flashbacks and nightmares. He relives the accident circumstances constantly.
He has always worked in the transport industry.
He has lost the enjoyment of playing and coaching rugby league. He last played in 2019 at the over 35 Masters’ level. He has been selected in the Australian team at that level. He loved playing and coaching the game, and he provided evidence including photos of how he continued his active participation up to the date of the accident.
He also used to play golf and attend the gym. He could lift and carry his children without any restrictions or difficulties.
He provided lists of activities and photos of what he could do before the accident, which demonstrated he was athletic and powerful.
He said his only relevant earlier accident was a 2011 motorbike accident, when he injured his right knee. The crutches caused problems with his shoulders, but that resolved when he ceased to use them.
He now finds it hard to be in crowds, such as at the rugby league or boxing because he fears coming into painful contact or being reinjured. He feels isolated.
In 2022 he had to move from his third floor unit to a ground floor unit because he feared falling down the steps. He had tripped a few times because of lack of sleep since the accident. He also built a barrier across his balcony because of his suicidal thoughts.
He describes the circumstances when he saw Dr Shatwell for that doctor’s report dated
4 March 2022.
This statement points out several errors the doctor made about the factual circumstances of the accident. He also felt belittled because the septuagenarian specialist was demonstrating how agile and limber, he was compared to how Mr Washbourne felt.
The claimant continues to seek treatment including pain management and a psychologist. He takes medication. He understands he has arthritis in both shoulders but this was asymptomatic before the accident.
He takes strong pain medication including Endep analgesics.
Lack of sleep leaves him tired and sleepy during the day. He cannot perform any heavy lifting and carrying, which he was required to do frequently in his last role.
It was also necessary to drive the truck all day when he was employed but his chronic lack of sleep affects his capacity to drive. He cannot bend, twist or exert himself without difficulty.
He provided a list of employers he worked for. All those jobs involved physical activity including pool installation and truck driving, which are now impossible because they involve the use of his arms. He has considered seeking work at NDIS.
He is unable to clean himself when he uses the toilet, and he can only do simple tasks in domestic duties and personal care.

Claimant’s statement dated 10 July 2023

The claimant detailed his passion for rugby league, the high sense of achievement it gave him, and that he intended to play as long as he could. There is a pathway for mature players including an Australian team, which plays in tournaments against other countries.
He has lost the ability to play any sport and the social interaction it provided.
He feels he has lost his purpose. He is constantly thinking of suicide and avoids situations which offered such opportunities. He is unable to play with his children including grandson, nieces and nephews.
He feels overwhelmed with emotions including fears for his future. He feels crazy from lack of sleep. He feels helpless especially when other people have to do tasks for him.
When he wrote this statement he was living with his ex-partner, and mother of his children. She puts up with him but the relationship is strained.
Since the accident he felt he was less in control of his emotions and feelings.
Before the accident he enjoyed being strong and sought physical challenges. His friends relied on his help with projects and to carry heavy things.
He had hoped you could return to work after he had shoulder surgery but feels devastated when that has not happened.
He strove to prove the doctors wrong and return to fitness, but his daily pain prevents that happening.
He has headaches, migraines, dizziness and sweating because of his pain. He cannot wipe his bottom properly or at all after using the toilet, he cannot experience sexual release because he feels unattractive and is self-conscious about his smell.
He requires a bidet to clean himself properly. Despite having medical and OT support that it would benefit his rehabilitation to retro-install an electric bidet it appears that the workers compensation insurer declined to fund this.
He feels grief, anger and frustrations whenever he tries to clean his bottom.
His physique has shrunk since the accident losing muscle mass matches 20kg. He feels ashamed and weak. He is embarrassed by loose skin replacing his muscles. He has sought medical help including advice from plastic surgeon. The loose skin causes problems such as boils developing under his arm.
He still has nightmares.
The pain medication he takes for neck and shoulder pain affects his bowel movements and stools. He included photographs of his messy bowel movements. He needs medication which enables him to sleep.
He has tried to vary his medication to reduce side effects in consultation with his doctor, but Panadeine Forte is the only effective medication. He has taken other opioids of varying doses which he lists in this statement.
He wakes every two hours due to pain. He cannot return to sleep easily, and he battles with sleep deprivation. He carries his arms and uses his whole body to turn.
Tilting his head to take a drink or look up is painful.
His personality has changed from outgoing to boring.
Pages 7 to 11 of this statement includes detailed lists of daily living activities, personal care, sporting pursuits, home maintenance, interacting with children and family, and psychological distress, which demonstrate a broad loss of amenities, and pain and suffering. It is an almost exhaustive list.

Claimant's supplementary statement dated 18 February 2025

This statement provides the claimant’s family history including his education and current family life.
He also provides his employment history, which is generally entry-level physical work requiring high levels of fitness. This is also mixed with his rugby league history, where he strove with some success to play professionally or at least be paid to play.
By his late twenties he had given up the dream of full-time professional sport and concentrated on transport jobs, including working as a storeman, yard work and driving, which led to loading and unloading trailers and tankers.
By the time of the accident he was a meat carter, carrying out deliveries to suburban shops from a wholesaler.
He intended to remain in this type of work indefinitely, because he was physically fit and exercised to stay fit and active.
He recollects the only time he was away from full-time work was when his mother died in 2017, between jobs in or around September 2019 and from late January 2020, after his attempts to return to work after the accident had failed.
He recently trialled cannabis oil, which has mitigated his sleep problem slightly.
He attends the gym to use an exercise bike, which is all he can manage.
He continues to have excruciating shoulder pain, particularly on the right dominant side. He holds his arms tucked into his body at all times, which is the posture I observed he maintained during the assessment.
He has referred neck pain, which has caused him migraines.
His character is affected by sleeplessness for the worst.
He feels he has lost his previous identity as a strong and capable man. He feels weak and vulnerable. His personal care problems are continuing.
He has had feedback that his appearance has changed; in some cases, he is unrecognisable.
He grieves for the loss of family life and his identity as a fit and capable sportsman and outgoing personality.
In his last statement dated 3 April 2025, he confirms he received workers compensation until 22 January 2025; his disabilities still cause suffering and he requires personal assistance from his ex-partner and family members.
He holds a Heavy Combination (HC) license, and he would have continued to work in the transport industry. He provides a range of possible earnings for HC drivers. He cannot work and still requires treatment.
A HC licence in Australia allows a holder to drive articulated vehicles with three or more axles, like a prime mover towing a semi-trailer, or a heavy rigid vehicle towing a trailer with a GVM (Gross Vehicle Mass) greater than 9 tonnes. Mr Washbourne confirmed that he had not worked as an interstate driver but concentrated on suburban deliveries.
Regarding his current treatment he stopped seeing a psychiatrist in mid-2024, because the medication prescribed was not helping him and he was suicidal. He believes he is doing better relying on his general practitioner (GP) and psychologist without the medication.
I noted the insurer objected to this statement in respect of a late claim that Mr Washbourne could have moved into higher paying work as an articulated truck driver. I do not intend to give that claim weight because the claimant’s work history did not include driving that type of vehicle or any interstate or long-distance driving.

EVIDENCE

Claimant’s oral evidence

The claimant presented during most of the assessment with the arms crossed apparently in support of his shoulders with his elbows flexed and his hands interlinked. This was consistent with how he presented for Medical Assessor Gibson’s examination for the Medical Review Panel and his presentation during Vocational Capacity Centre (VCC)’s functional assessment presented in a report dated 4 February 2025.
He explained that he had to hold his arms like that to protect himself. He demonstrated how he put a jumper on during the assessment.
The insurer did not produce any evidence demonstrating him moving freely, but I noted that some of the medical reports recorded variations in his range of movement and that his condition has become worse in the last two years.
The insurer’s counsel put to the claimant that he had only been working with SCF since October 2019. The claimant thought it was more like August that year.
The insurer’s questions demonstrated that it disputed that the claimant’s alleged hours were nothing like the hours he purports, which he said was as high as 50. Payslips showed that the claimant would work as few as 25 hours, and only occasionally over 40 hours.
He was questioned about working at a company called Punjab, which appeared to be a logistics company. He did know how long he had worked there, but it was only briefly.
The claimant alleged he was working throughout 2019, but he had not provided a tax return showing employment for that year. He denied that he had been unemployed from
1 July 2018 until 12 October 2019. He explained he filed his tax returns via Tax Tips. He said he was normally employed doing hard physical labour but was away from any work after his mother died and he was helping his father with dementia. He could not remember the time away.

He denied that he had spent significant time on Centrelink unemployment support.
His tax return in 2018 showed that he had worked for three companies doing transport related work. It was physical work as a side loader, which is loading and unloading transport containers on and off semitrailers.
He did not remember all the names of the companies he worked for that year.
The insurer’s counsel pointed out that in 2017 and 2016 the claimant earned only about $500 per week.
The insurer’s counsel also pointed out that on 4 October 2019 the claimant saw his GP about his anxiety and grief about a lack of work.
The claimant’s inconsistent range of movements throughout various examinations was raised as evidence that the claimant was exaggerating his restrictions to doctors. He denied that he was exaggerating.
As for alternative employment over the last five years and future employment, counsel put it to the claimant he could work full time as a telemarketer, delivery driver, parking officer or metre reader, which had been suggested in the VCC report as suitable duties which the claimant was capable of doing. He denied he could do those jobs, because he cannot drive now and would not know what to do in those other roles or whether he could manage with his disabilities.
I do not recall the exact words in the claimant’s reply, but I recollect it appeared by his words and demeanour as if he could not comprehend how he could manage moving into the clerical or law enforcement world.

Other lay evidence

Ex-partner’s Jodi Westerland statement dated 5 October 2022

Mr Washbourne and his now ex-partner had known each other for over 19 years in 2022. They have two children together born in 2005 and 2013. They lived together from 2005 to 2008, but they continued to see each other.
They were still close when the accident happened. Due to the claimant's personality changing for the worse after this accident their relationship ended.
Ms Westerland has continued to provide care, including transportation for treatment, housework and shopping. It is her opinion that he cannot manage those things himself since he was injured.
She observed massive changes since the accident for the worse and corroborates his account of his helplessness and disability. He has lost his physical fitness, and also the ability to interact with his children.
He could not manage heavier aspects of housework. She provided Mr Washbourne with personal care when he showers, which he says is continuing. He used to help her with household duties, but now he relies on her.
Ms Westerland provided an updated statement dated 3 April 2025, which confirms that she still provides assistance, but he has reduced his reliance on her to two hours per day.
Ms Westerland observes that the claimant’s personality and moods have deteriorated, but it is hard to help him because he is pedantic, as he strives to retain vestiges of control of his situation.

Dave Pussell’s undated statement

Dave Pussell has known the claimant since they were 15 years old. They played rugby league together and the deponent observed he was strong, big and unrestricted in his movement.
The claimant played in the 2019 season, and the deponent did not see him for a while after that. Since they reconnected, the deponent has noticed that the claimant is physically diminished, frail and prematurely aged.

Ray Siggelkow’s statement dated 28 September 2022

Ray Siggelkow was Mr Washbourne’s parents’ friend. Mr Siggelkow has known the claimant since he was a boy and saw and sees him regularly. Mr Siggelkow still operates a pool building business. This involves intense physical labour.
Before the accident and since the claimant was about 14 or 15 years old, he would work intermittently in the pool installation business for the deponent. It was hard physical work requiring the claimant to shift as much as eight tonnes of sand. The claimant was always able to manage this until the accident.
The deponent observed that the claimant had a lot of pride in his fitness and was careful to maintain it.
The claimant cannot perform hard physical work anymore. He is diminished and looks much smaller than he used to.

Peter Matheson’s undated statement

Peter Matheson is Mr Washbourne’s friend and managed one of the claimant’s teams in 2015. He confirmed that the claimant always maintained a high level of fitness and demonstrated he was physically competent. He also demonstrated leadership to younger players and it reads as if he was considered a cornerstone of the team.

Rhys Washbourne’s statement dated 1 April 2025

Rhys Washbourne is Mr Washbourne’s son.
Rhys provides a detailed explanation of the work required of the claimant as a meat carter, because after the accident when the claimant attempted to return to work in late 2019, he spent his school holidays assisting his father.
He describes a day beginning between 3.30am and 4.00am, loading a truck with heavy pieces of meat in boxes and hanging portions on the hook. Every aspect of the work was hard and required peak physical fitness. Rhys noted that his father was in pain and was unable to manage this work alone.
Since the accident Rhys has noticed his father does not have full range of movement in his arms; cannot wash himself; cannot lift his grandchildren and appears in pain lifting a 2l bottle or opening a fridge door. He has observed his father is emotionally distressed and he cannot sleep. He corroborates his father's version of his level of disability.

Medical evidence

Treating health care providers

The claimant has attended the MyDoctors Medical Centre at Macquarie Fields since 2007. That clinic provided records from before and after the accident.
Relevant entries before the accident:
(a)    18 January 2010 - thrown out of truck when a crane snapped off “bruised Lt knee and shoulder”. No fracture in knee and femur awaiting results for X-ray shoulder;
(b)    20 January 2010 - unable to retrieve information re CT scan shoulder still suffering from left knee pain;
(c)    22 January 2010 - still limping with knee in a splint. Workers compensation claim and ongoing physiotherapy at several following consultations. Knee complaints were made but no further shoulder complaints. In June 2010 the GP prescribed Tramal and the claimant returned to work on or about 10 July 2020 but by
19 July 2010 his knee was swollen and sore;
(d)    31 August 2010 - left shoulder pain, limited range of motion and tenderness along the joint line. Further left shoulder complaint on 13 September 2010. On
23 September 2010 he reported he recovered;
(e)    on 25 February 2011 right foot injury sustained at work;
(f)    11 July 2011 Dr Guirguis recorded that the claimant bruised his right knee in a motor bike accident. He attended hospital accident and emergency four weeks before seeing Dr Guirgis. The claimant took five days off work. Right knee slightly tender but had a full range of motion. Further right knee complaint in February 2012;
(g)    3 August 2011 - thumb injury from football;
(h)    17 November 2011 left ankle injury “coming off a truck”;
(i)    11 September 2012 left shoulder and neck pain after pulling a trolly on the back of a truck. There was a full range of motion in the neck and left shoulder with tingling down to the middle of the left arm;
(j)    15 March 2013 - reference to a head injury at the age of two (he attended for a hard lump on the frontal bone);
(k)    20 September 2013 - injured his hand at work;
(l)    8 May 2014 - felt pain in the palm muscle and wrist during work. Claimant had an X-ray and was followed up the next day with “all ok”;
(m)     9 December 2014 - the claimant reported to his GP he had been “bashed, kicked in the head by guards at Penrith Leagues Club at 2 am on Sunday”;
(n)    16 August 2016 - the claimant attended Dr Cheong complaining of a rectal bleed and “bilateral shoulder pains for years, used to lift heavy weights in the gym –gradually worsening symptoms clinically likely impingement X-ray and ultrasound to confirm may need physio and injection.” The claimant referred to specialist
Dr Wilson, but there were no other relevant attendances;
(o)    28 November 2016 - lower back pain since driving a truck due to seat issues but the claimant had a good range of movement and straight leg raising was negative;
(p)    19 April 2018 - the claimant injured his right ring finger while at work;
(q)    in late December 2018 and in January 2019 the claimant attended for chest pains which could have been anxiety;
(r)    25 February 2019 - the claimant was injured after being punched, he worked the whole day then made a police report and was told to see his GP. He denied any numbness or abnormal sensation or weakness in his arms or legs but there was paraspinal tenderness and swelling;
(s)    3 June 2019 - the claimant had lost a tooth during a rugby game, and
(t)    4 October 2019 – the claimant attended due to financial stress since an accident six months earlier that led to police charges and the loss of his job. The claimant said he was unable to get work and was provided with a Centrelink Medical Certificate.
Camden and Campbelltown Hospitals clinical notes record:
(a)    25 May 2008 relating to a neck injury in a game of rugby;
(b)    right knee pain in June 2011 after a motor bike with “mild shoulder pain”;
(c)    bleeding from the bowel in September 2018;
(d)    chest complaints in January 2019, and
(e)    a letter to the claimant’s GP after 2011 motor bike accident suggests no abnormality in the left shoulder but the right shoulder was tender over the AC joint, had limited range of motion but normal strength and X-ray revealed no fracture. There was no corresponding GP record around this date.
The claimant attended on Dr El Naouchi of MyDoctors Macquarie Fields after this accident on 12 December 2019. The claimant reported being hit by a truck earlier that day and that he was hit on the right side and fell to his left side. He complained of “marked right shoulder pain” and pain at the right side of his neck. Both the right and the left shoulder had restricted movement.
There were multiple attendances seeking work cover certificates, which noted the claimant was eager to return to work on suitable duties.
Dr Keriaqos referred the claimant to orthopaedic Dr Ray Chin at Fairfield on
10 February 2020. Dr Keriaqos refers to “right shoulder pain related to motor vehicle injury on 12/12/19.”
Dr Keriaqos referred the claimant to Dr Chin on 11 June 2020 for “left shoulder pain.”
Both the claimant and the insurer rely on Dr Chin’s reports.
Dr Chin’s note dated 2 April 2020 refers to the accident and a fall onto his left side with left and right shoulder pain since then. There was no prior shoulder pain, and the claimant had been functioning well. Main problem was the right shoulder with pain and pins and needles radiating into the hand. Referred to MRI.
On 30 April 2020 Dr Chin opines that “the arthritic type changes were not caused by his accident, but his labral tear is certainly the result of this accident.” He offered surgery to repair the labrum which would decrease the pain but would not change the arthritis.
On 24 June 2020 Dr Chin’s reports on the operation on the right shoulder labral tear and biceps tendinopathy with Type II acromion done at Sydney Southwest Private Hospital. He found a labral tear as the labrum was frayed and there were longitudinal splits in the biceps.
Dr Chin’s letter to Dr Keriaqos on 9 July 2020 notes “ongoing pain in his left shoulder”. MRI report had apparently been obtained but not seen.
Dr Chin wrote on 6 August 2020 that the claimant was progressing quite well and physiotherapy was improving his range of movement. However, the claimant was concerned about his left shoulder. There were features not related to the accident but “a labral tear which again is similar to the contralateral shoulder”. He proposed the same operation.
Dr Chin’s handwritten notes say that the claimant complained of pain in both shoulders at the first consultation and that if he fell onto his left shoulder, his left shoulder would have been injured. He identified pre-existing osteoarthritis in both shoulders. He thought the claimant would be fit 26 weeks after the operation and supported physiotherapy one to two times a week for six months.
Dr Chin operated on the left shoulder on 25 February 2021 to remove a loose body in the claimant’s glenohumeral joint and repair a labral tear.
Dr Chin reported on 9 March 2021 that the claimant was doing well and that he was likely to recover a reasonable range of motion but that the arthritis will prevent him from doing heavy manual work.
Dr Chin’s letter of 10 June 2021 noted the claimant was still struggling and required more physiotherapy.
Dr Chin also provided a letter dated 21 Oct 2022 to the claimant’s solicitor addressing the impact of the shoulder injuries to the claimant’s fitness for physical labour. The request for the report seemed to be in the context of the insurer contesting that Mr Washbourne’s injuries were purely soft tissue and thus “minor” as defined in s 1.6 of the MAI Act:
“I initially saw Daniel on 2nd April 2020. His accident was on 12th December 2019. When I saw him, he was complaining of bilateral shoulder pain of which the right shoulder was worse than the left shoulder. He has a background of heavy manual labour, and as you rightly pointed out, was asymptomatic and able to carry out his normal duties prior to the accident.
Subsequently, an MRI scan was performed on the shoulder, as well as a plain x-ray. The MRI findings were that he did have some glenohumeral joint arthritis, and he had labral tears and paralabral cysts.
I felt at the time that the arthritis was degenerative in nature and not something that was caused by the accident. The labral tear, from which he was quite symptomatic, was fresh. It was a significant tear, extending the length of the superior labrum. Because it involved the biceps anchor, in a manual job, the biceps tendon would provoke more pain due to the traction effect of the long head of biceps on the labral tear.
Daniel subsequently had an MRI scan of his left shoulder in June of 2020. The left shoulder MRI scan demonstrated glenohumeral arthritis with a degenerative labrum and a ganglion. It did not show any loose bodies at the time. The difference between an acute and a chronic tear will be the sharpness of the edges of the labrum, demonstrated on the MRI scan as well as intraoperatively. There was also an element of inflammation and fresh tears, which may not be seen in chronic tears. By the time the left shoulder MRI was done, it had been six months following his injury which would likely show an element of degeneration in the labrum in that time.
Labral tears can be serious injuries in this location and size. In Daniel's case, this is a superior labrum which is more commonly seen with overhead lifting. Labral tears can be anterior, which may lead to shoulder dislocations, or posterior, which leads to difficulty with pushing or pulling style jobs. The location and size of the labral tears will determine whether they are minor or major injuries.”
Dr Keriaqos referred the claimant to neurosurgeon Dr Joanna Lee on 8 March 2021 writing, “He has had a work cover claim regarding both shoulder injury and neck injury. He put the neck pain as a referred pain from the shoulder and that’s why he didn’t proceed with further management of neck pain. He states that he never had any neck pain prior to the incident.”
On 9 September 2021 Dr Lee reported after her third examination that injections and medication she recommended for the claimant's cervical and shoulder pain had given "minimal benefit". Dr Lee also recommended a new bed because the claimant was having difficulty sleeping.
The claimant's physiotherapist Mr Wu reported on 12 July 2021 that the claimant should be provided with a new bed. He had treated the claimant and could see that the injuries had caused pain, loss of function and surgery. The physiotherapist noted, "despite the setbacks Daniel has been committed and diligent in his rehabilitation."
Pain specialist Dr Laurent Wallace saw the claimant on 27 February 2024. Right shoulder pain was worse than the left, while neck pain was worse on the same side. The pain was described as tight, stabbing and radiating down the arms to the elbows and fingers. The specialist tested the claimant and described, "severe depression, anxiety and distress… low self-efficacy… high levels of catastrophic thinking…Even his elbow extension is very reduced! Very tender all around the shoulders." His shoulders demonstrated massively reduced range of motion bilaterally.
Dr Wallace recorded that the claimant was still interested in doing exercise physiology to improve his function.
Psychiatrist Dr Mahendra Nepal's report dated 15 July 2024 recorded that the claimant had consulted with Dr Nepal five times between 11 August 2023 and 26 April 2024. He recorded the history consistent with the claimant's statements.
Dr Nepal diagnosed adjustment disorder with depression and anxiety. The depression was prominent and moderate to severe. He had post-traumatic stress disorder like symptoms as well as chronic pain affecting his upper limbs functioning. There were personality traits of being demanding and borderline. Dr Nepal’s opinion was that from a mental health perspective he was not fit to return to work.
Consistent with the claimant's ex-partner's opinion that the claimant was lashing out at others because of his hopelessness, Dr Nepal recorded the claimant was aware he was acting out. Dr Nepal wanted the claimant to undergo pharmacotherapy and cognitive behaviour therapy.

Medico-legal evidence

It was apparent that this insurer disputed the claimant's entitlement to damages on the grounds that his injuries were minor (now threshold) under s 1.6 of the MAI Act. From the evidence bundles it appears that an early concession on non-minor injury was withdrawn after Dr Antoun and A/Prof Michael Shatwell provided opinions.
This was despite the claimant's treating orthopaedic surgeon Dr Chin’s reports and notes distinguishing the previously asymptomatic degenerative signs from the directly caused labral tears.
Dr Antoun provided a report to QBE dated 12 October 2021. That doctor hypothesises on the nexus between the accident and the claimant’s shoulder conditions. It is not based on examining the claimant and relies on a radiologist confirming that there were long-standing changes. He concluded the accident caused soft tissue injuries to the relevant body parts, which should have been resolved promptly.
The insurer maintained the accident did not cause any injuries bar transient soft tissue injuries, which could result in impairment until a Medical Review Panel referred to below found the accident did cause the referred injuries.
Associate Professor Michael Shatwell provided two reports dated 23 February 2022 and
5 April 2023.
Despite being briefed with Dr Chin's treating reports, the small number of complaints in the past about bilateral shoulder pain, the history of the accident, and taking a detailed history including complaints about the claimant's right and left shoulders with his cervical spine contemporaneously with the accident this specialist declined to find any nexus between the accident and the claimant's alleged physical injuries. This specialist considered any symptoms and need for treatment could only relate to long-standing chronic degenerative glenohumeral osteoarthritis, rather than accident related briefly symptomatic soft tissue injuries.
This specialist did not address the mechanism whereby the claimant carrying a heavy load on his right shoulder made contact with the bitumen surface on his left shoulder. He did not answer the medical question of whether that contact could cause the alleged injuries.
In the Associate Professor's supplementary report, he addressed complaints made in the claimant's statement dated 2 December 2022 which record his opinion that A/Prof Shatwell did not accurately record the history he provided.

Mr Washburn had complained there was an element of "teasing" during the examination by the specialist he demonstrated his mobility in contrast to his own. The specialist denied that was his intention.
Radiologist Dr John Korber's report dated 19 December 2022 comments on scans of the claimant's shoulders. He agreed the right shoulder's labral tears were frankly injured in the accident after examining the scans and reports, but he was not sure about the left shoulder.
Medical Assessor Nair certificate dated 17 November 2023 contained an assessment which quantified permanent impairment arising from the accident and whether the claimant had threshold injuries as defined in s 1.6 of the MAI Act.
Medical Assessor Nair had A/Prof Shatwell's reports and his opinions before him, as well as reports from A/Prof Miniter and Dr James Bodel.
The Medical Assessor found the claimant's presentation was consistent and that the accident caused the claimant's shoulder labral tears and the cervical spine musculoligamentous injuries. He found the shoulders were equally impaired due to the accident at 8% each and the cervical spine at 5%.
The insurer applied to have this assessment reviewed and it was referred to a Medical Panel.
That Panel produced its certificate dated 25 July 2024, which assessed a different level of whole person impairment, however it agreed with Dr Nair's opinion that the accident caused the neck and shoulder injuries. The Panel referred to the claimant's history and the contemporaneous complaints about the injured body parts to ambulance staff and his GP, which led to referral to appropriate specialists.
The Panel noted the insurer did not challenge the claimant’s reliability or credibility but referred to a “multitude” of shoulder complaints before the accident. The Panel rejected that submission.
The claimant was considered cooperative but the Panel was not able to rely on range of movement to measure impairment because of the lack of consistency in the exam and with other assessors but relied on cl 6.50 of the Motor Accident Guidelines to exercise their clinical judgment to use the claimant’s medical records and history to assess permanent impairment.
While the Panel did not assess disfigurement it agreed with Dr James Bodel's assessment of 2% impairment referred to below. I have also viewed the photographs provided with the claimant's evidence bundle, which demonstrate noticeable and prominent scarring, which would be noticeable if the claimant was bare chested or wearing tank tops, as he is depicted in photographs taken before the accident and tendered.
The Panel also found that while there were degenerative changes in both shoulders, these were not symptomatic before the accident. As the Panel pointed out he could not have played rugby league or worked in heavy labour before the accident if that was the case.
Medical Assessor Glen Smith assessed whether the claimant's psychological injuries were threshold injuries for the purpose of the MAI Act in his certificate dated 17 May 2023. He declined to assess permanent impairment because psychologically the claimant had not reached maximum medical improvement at that point. Dr Smith diagnosed that the accident had caused a persistent depressive disorder, with persistent major depressive episodes, with anxious distress. He did not agree with psychiatrist Dr Sergiu Grama's opinion in his report dated 4 October 2022 that the claimant had suffered post-traumatic stress disorder, which was the other injury which had been referred to him for assessment.
The certificate refers to the claimant's psychological condition before the accident. In April 2019 Mr Washbourne had been treated for anxiety with antidepressant/antianxiety medication. On 4 October 2019 Dr Gabriel (GP) noted the claimant experienced depressed mood in the context of losing his job six months earlier. Dr Gabriel diagnosed post-traumatic stress disorder but did not document symptoms and he did not describe the stressors.
Mr Washbourne admitted to feeling anxious and depressed after his mother passed away but he could not recall any treatment that he received.
The Medical Assessor decided it was not "unusual for patients to forget the names of antidepressant medications previously prescribed. The documents were consistent with Mr Washbourne’s admission of pre-accident psychological symptoms."
The certificate refers to Dr Navid Amirabadi of Sydney Pain Management Centre's report dated 11 August 2022. Interestingly, it refers to the claimant having a boom/bust mentality about returning to work, and that he was only interested in being able to work at heavy physical labour, rather than alternative suitable duties.

References to hand written psychologist notes after the accident referred to OCD tendencies, struggling with limitations, ruminations, anxious and overwhelmed, lack of sleep, unable to clean himself after toileting, unable to play with children, loss of manhood, suicidal thinking, and nightmares.
The Medical Assessor found the claimant's impairment was not yet permanent because he had only recently been referred for psychological therapy and had not received appropriate psychiatric treatment, including pharmacotherapy, which could improve his condition.
The insurer instructed psychiatrist Dr Tom Newlyn who examined the claimant and produced a report dated 6 February 2024. Dr Newlyn diagnosed an adjustment disorder of mixed anxiety and depressed mood arising from the accident.
Dr Newlyn considered that the pain management was critical to help the diagnosed psychiatric condition resolve. He thought the claimant could work full-time with an adjustment disorder, but did not express that opinion in the context of successfully treating the pain from the claimant’s physical injuries or the claimant’s experiential and educational background.
The doctor noted the claimant had commenced a psychopharmacology trial, but it was not helping.
Medical Assessor Doron Samuell assessed the claimant's permanent impairment in June 2024. He found the claimant suffered an adjustment disorder, which he assessed at 0% impairment.
Dr Samuell found that a lot of the claimant's limitations were due to pain avoidance behaviours. He also mistakenly concluded that the claimant had not admitted his pre-accident psychological distress to the earlier Medical Assessor.
Dr James Bodel's report dated 1 September 2022 recorded the claimant had continuing aching pain across the base of the neck and over the top of both shoulders.
Dr Bodel agreed with the rehabilitation and worksite assessments that the type of work the claimant had done was now off-limits although he could explore suitable duties. The diagnosis was a soft tissue musculoligamentous injury to the neck and a partial thickness tear of the labrum in both shoulders, caused by the accident. He requires further treatment, including shoulder replacement surgery in the future, which should be substantially deferred but appeared certain in this doctor's opinion.
Dr Bodel's latest report dated 22 October 2024 notes the claimant's cervical spine and bilateral shoulder movements had further deteriorated. The reason for this deterioration was not apparent. This also varied from the examinations with Dr Wallace and the Review Panel. Dr Bodel agreed the claimant was totally and permanently incapacitated for work because of his injuries and psychosocial issues.
Psychiatrist Dr Abdal Khan's report dated 2 July 2024 assessed that Mr Washbourne suffered a primary psychiatric/psychological injury as a result of the accident. He has experienced deterioration in his mental state and developed the psychiatric conditions of post-traumatic stress disorder and persistent depressive disorder.
Occupational physician Dr Robin Mitchell’s report dated 11 February 2025 assessed the claimant’s capacity for work as follows:
(a)    to avoid aggravating symptoms the claimant should manage all physical activities below mid chest height close to the trunk;
(b)    frequent manual handling should be limited to 5 kg in force with respect to lifting, carrying, pushing, and pulling actions;
(c)    occasionally he could manage 10 kg, and
(d)    he should avoid fixed and awkward spinal head and neck postures by moving his posture frequently.
Dr Mitchell disagrees with the claimant’s view that his disabilities prevent him from driving.
Psychiatrist Dr Lucas Murphy’s report dated 14 March 2025 was served shortly before this assessment. The insurer objected to me considering its contents as a late document, because it did not have time to respond with its own report. The insurer has made submissions, which I have read and considered.
I will consider it.This report does not contain any surprises; it does not deal with the insurer’s evidence on the claimant’s psychological condition or the Commission’s psychological medical dispute certificates.
Dr Murphy remarks that it would help the claimant’s psychological condition if the claimant could obtain suitable part-time work with the assistance of an occupational therapist, but it does not deal with the rehabilitation he has undergone or vocational evidence from Mr Martin and VCC. I have considered the report’s conclusions.

Vocational assessment and rehabilitation evidence

On 24 February 2020 the claimant's workers compensation insurer instructed a rehabilitation provider Kairros Pty Ltd to assist the claimant to return to truck driving on normal hours. At that time, he was certified fit for suitable duties for five hours per day for five days per week. However, suitable duties were not available.
The claimant had reduced pushing/pulling and lifting/carrying capacity.
The claimant was then confident he would be able to return to work soon and he was minimising his pain levels.
The rehabilitation provider noted that the claimant's work was classed in the “very heavy physical demand level”. At that point, the rehabilitation provider considered Mr Washbourne was not at risk of developing or perpetuating long-term disability and work loss. She was concerned though that he was using greyhound liniment to treat his pain.
The rehabilitation provider closed the claimant's rehabilitation file on 27 November 2020. The outcome was deemed total incapacity. The report described the claimant as "extremely proactive" in his approach to physical rehabilitation and highly motivated to return to work. He had participated in all forms of retraining, job seeking and career enhancement training.
The report notes that the claimant's rehabilitation had been interrupted by the need for surgery. The COVID-19 situation in 2020 in the south west of Sydney also interfered with providing treatment. I note this issue was operative throughout 2021 in that area too.
The claimant's GP had also informed this rehabilitation provider that the claimant's goals to return to work within four to six weeks after the surgery was unrealistic.
The GP noted the claimant willingly worked with his physiotherapist to achieve his previous level of fitness. Despite that, it was also noted late in 2020 the claimant was not progressing well in his recovery.
Skilled Health provided a rehabilitation report dated 7 January 2022 to assess his activities of daily living and needs for equipment. This included a visit to the claimant's home.
By this time the claimant was observed to be fixed and protective with his upper limb movements, which was consistent with his behaviour demonstrated during the assessment of damages and in other examinations. At that point he was living alone in an apartment, which was in the same building as his ex-partner.
The assessment confirmed the claimant was having trouble dressing himself and wiping his bottom after he had been to the toilet. He also confirmed that his shoulder neck and lower back pain prevented him achieving a decent night's sleep. He relied on a recliner lounge to sleep, but it was deficient in length and support.
At that point Mr Washbourne had undergone 160 physiotherapy sessions since the accident. The physiotherapy funding ceased late in 2021, but the claimant was persisting with independent exercise. The rehabilitation provider observed the claimant demonstrating restrictions in nearly every aspect of his ADL. He relied on his ex-partner to attend on him at home twice a week to assist with heavy cleaning and washing heavier items.
The rehabilitation provider recommended that domestic assistance should continue to be provided to the claimant. It was also noted that the claimant had medical support for a suitable bed that would enable the claimant to rest, but this may not have been provided. It was noticed that facilitating better sleep also increased the chances of successfully participating in vocational rehabilitation activities and return to work.
Almost contemporaneously, one of the insurers instructed Kairros to produce a report dated 31 December 2021 to also assess the claimant's need for assistance. It made similar findings on the claimant's reduced capacity, but that also he required a bath transfer bench, shoulder relief pillows and a massage chair trial.
Rehabilitation advisors Work Together's Craig Martin produced a functional and vocational capacity report dated 20 December 2024. He confirmed the claimant’s vocational ambitions were to continue being a delivery driver or truck driver. Mr Martin classified the claimant as someone who likes working with materials, tools, machinery and equipment and possibly plants.
He was judged not suited to sedentary employment due to his educational and experiential background:
“(H)e is unable to sustain or maintain work in any occupation for which he currently qualifies; is unlikely substantially to increase his vocational qualifications or skills through vocational retraining; and regardless of his ability to sustain or maintain work, his injuries will continue to prevent him from securing employment.”
After identifying suitable work, it was Mr Martin’s opinion that but for the accident,
Mr Washbourne could have continued to work in those roles or similar employment in the future and work until the age of 70 or alternatively, until the statutory retirement age of 67.
The insurer instructed the VCC to also produce a functional and vocational capacity report dated 4 February 2025. Physiotherapist Gillian Stewart and a psychologist Peter Defina interviewed the claimant.
In terms of functional assessment, that team opined the claimant had demonstrated he could perform sedentary and selected light work with provision for alterations in work posture and manual handling performed optimal height. He could return to work in a physically appropriate occupation but would require a graded return to work.
The psychologist’s opinion is the claimant could return to work in clerical and administrative work, sales, and machinery operators and drivers categories.
In the functional assessment, I noted, despite the insurer admitting the insured driver’s breach of duty of care and the claimant’s entitlement to damages as well as the insured pleading guilty in the Local Court to negligent driving with facts describing how the claimant fell and the Medical Review Panel’s finding on causation, Ms Stewart spoke of the claimant as “reportedly sustaining injury”, as if it were still contended.
This report opines the claimant is misrepresenting his level of impairment.
He described to Ms Stewart that his neck pain varies not going below 5/10 most days up to 8/10 on bad days.
Bilateral shoulder pain was recorded never less than 4/10 but can increase to 9/10. He also described bilateral pectoral and lower bicep pain that occurs when opening a fridge or using a key in the door.
The claimant told her that he does very little at home apart from take his daughter to and from school, assist with meal preparation, going for a walk, and usually resting at least four hours during the day.
Ms Stewart tested the claimant's capacity for movement. He demonstrated restricted range of movement in the neck, both shoulders and elbows. He had functional range of movement in the trunk and all other peripheral joints. There was no muscle atrophy or adverse neurological signs. He could squat, crouch and kneel. He could not reach overhead away from the body with either arm.
His dexterity skills were very poor, which the physiotherapist attributed to slow pace and pain behaviour.
His grip strength were well below average, which Ms Stewart considered was not consistent with maximal effort.
The physiotherapist opined that claimant was self-limiting his performance in most tests. She did not think was a true indication of his current ability.
Ms Stewart thought his performance was inconsistent, mostly because he reported his sitting tolerance was only 20 minutes, after he had been seated for almost two hours.
Despite his restricted range of movement with his upper limbs he chooses to wear T-shirts and hoodies, which he requires assistance to pull over his head to wear or does so with difficulty. Loose clothing which can be buttoned and unbuttoned would be expected.
Ms Stewart observed the claimant moving more freely on CCTV after the interview, but he still required assistance to put a pullover on.
Ms Stewart observes the claimant’s range of movement is more restricted than it was in the past with other examiners. Earlier examiners did not see restrictions in the elbows, but the claimant told her he attributed that to physiotherapy ceasing.
Ms Stewart expected to see more muscle wasting based on the restrictions the claimant demonstrated. His pain behaviour was abnormal.
Ms Stewart conceded the claimant could not return to his previous heavy manual occupations. He was fit within the sedentary and light physical demand to jobs, which could include parking inspector, metre reader and telemarketer. The marketing research with this report confirmed that Mr Washbourne could make similar money to what he previously made.
Ms Stewart assessed the claimant as being fit to drive, but that was subject to him not using THC oil.
Dr Defina’s interview confirmed Mr Washbourne’s education levels were insubstantial apart from obtaining security and heavy vehicle licences more than 20 years ago. He also recorded the claimant participated in all aspects of his testing.
Dr Defina administered the following tests on the claimant:
(a)    pain patient profile;
(b)    modified somatic perception questionnaire;
(c)    pain disability index, and
(d)    structured inventory of malingered symptomatology.
The interviewer’s conclusions were that the claimant was misrepresenting his impairment because although he was a genuine historian the claimant exaggerated his pain and disability.
Dr Defina referred to the middle-aged claimant’s attitude to alcohol whereby he has stated he is a non-drinker as being inconsistent with a drink-driving conviction as a 16-year-old and demonstrating dishonesty, as well as his opinion that the claimant’s behaviour indicated “fabrication”.
Dr Defina wrote
“It is my understanding that Mr Washbourne is no longer physically capable of his pre-incident employment. Given the nature of his employment history, he would be restricted to elementary level alternative employment options. He would benefit from work placement programs and would require on-the-job training. On the basis of his current presentation and the evidence of misrepresentation, I would not expect Mr Washbourne to be successful in any attempt to return to employment prior to the settlement of this claim.”
Relevantly to this conclusion he earlier found that on testing the claimant’s intelligence he found:
“Mr Washbourne’s score on the Low Intelligence scale was above the recommended cut-off score for the identification of feigned or exaggerated cognitive incapacity or low intellect.”
I understood that to mean Dr Defina found that the test showed he was genuinely of low intellect. There was no evidence presented that would challenge that conclusion.

Economic loss evidence

Pay slips from SCF indicate the claimant was earning $29.64 per hour from starting with SCF until the week before the accident. His first week’s pay beginning 21 October 2019 was $720 net ($850.08) for 28.68 hours. The second week’s pay for 38 hours was $900 net ($1,126.32).

The payslips continue to show after that date, with one exception, that his normal hourly rate was $37.69.
The week before the accident he worked over 48 hours at the lower rate and took home $1,100.
The application for CTP personal injury benefits claimed Mr Washbourne was earning $1,100 net per week.
Pay slips for before and after the accident (on 12 December 2019) show that eight weeks’ worth of pay slips before the accident record a total of $6,780 net, which the insurer submits averages to $847.50 net per week.
Payment up to 8 February 2020 recorded net payments of $14,955.69 from 26 October 2019 to 8 February 2020 (17 weeks). The average net earnings were $879.75 per week. The claimant then commenced receiving workers compensation payments after ceasing work in February 2020.
The workers compensation insurer paid the claimant approximately $1,100 per week based on the SCF payslips.
The claimant’s taxation returns are as follows:
·        2016 - $26,167 gross income (numerous employers), $19,980 net income, $384 net per week, $4,028 in government payments;
·        2017 - $34,238 gross income, $26,585 net income, $511.25 net per week;
·        2018 - $66,637 gross income, $49,795 net income, $958 net per week;
·        2019 - Not provided, and
·        2020 - $24,656 from SCF Cartage, $22,952 from workers compensation insurer.
The net income earned from SCF Cartage for the financial year up to the date of accident is $19,626. Over 23 weeks the insurer submits that would amount to approximately $853 net per week.
The 2019 notice of assessment revealed nil income. The GP records before the accident noted that the claimant was unemployed and was stressed due to financial problems before starting with SCF cartage.
Mr Martin opined Mr Washbourne could have reasonably earned on average until retirement age at least $1,346 gross per week ($1,092 net per week) and up to $1,826 gross per week ($1,416 net per week) working in those roles in Sydney. Mr Martin also provided tables of what the claimant could have earned in the years since the accident driving trucks or as a delivery driver.

SUBMISSIONS

Credit

I note the Medical Review Panel reasons state at paragraph 145 that the insurer did not challenge the claimant’s reliability and credibility in its submissions.
However, from the insurer’s damages submissions, the tone of the Shatwell report, VCC report and counsel’s questions, the claimant’s reliability and credibility was in issue in this assessment.
During questioning at the assessment, the insurer’s counsel put it to Mr Washbourne he was exaggerating his disabilities and that he could have practicably obtained work in the roles the VCC report suggests, but did not wish to.
The VCC report and the insurer’s submissions state the claimant would return to work as soon as these damages are assessed.
Further, the insurer relies on VCC’s opinion that psychological tests justify finding the claimant is misrepresenting the level of his disabilities.
The insurer’s questioning also suggests that it rejects the claimant’s explanations for inconsistencies in range of movement, such as the withdrawal of funding for physiotherapy and varying pain levels.
The insurer also refers the claimant serving six months in jail for an assault in his early twenties, and there is also a drink driving offence when he was 16 years old. He is frequently questioned about this in the medico-legal examinations.

The insurer submits the material demonstrates a constant theme of the claimant’s potential exaggeration of his reported symptoms and capabilities. Medico-legal assessment reports including Dr Bodel’s report have referred to questions regarding the consistency of the claimant’s complaints and little wasting present in the claimant’s musculature.
Dr Shatwell commented that his clinical examination of the claimant revealed range of neck movement approximately 50% of the range expected of a man his age and build. There was no significant wasting of the muscles in the upper limbs.
Dr Mitchell commented that the,
“complaints and duration of disability are generally consistent with the injuries sustained in the accident, however there was more disability claimed than expected, based on the objective clinical and radiological evidence available, with Mr Washbourne only acknowledging the capacity to lift 2 kg.”
The insurer refers to the VCC report and comments the claimant’s performance was ‘significantly self-limited’ and his performance and history showed many inconsistences.
VCC’s Mr Defina opined that “it can be asserted with confidence that Mr Washbourne has misrepresented his level of impairment due to psychological symptoms and pain… it is reasonable to conclude that he intended to present an exaggerated level of incapacity for employment.”
The insurer submits that the claimant’s statements as to his alleged level of disability should be treated with caution for these reasons.
The claimant submits the witness is truthful and authentic.

Non-economic loss

The claimant submits there is no relevant evidence about any relevant pre-accident conditions other than infrequent complaints about neck and shoulder pain. These seemed to be one off events.
The claimant submits he suffered frank injuries in the accident, which have led to chronic psychological and physical conditions, which led to further medical intervention and serious, life-changing disabilities.
The insurer submits the claimant’s psychological conditions are pain related reactions, which are not authentic because he is misrepresenting his physical disabilities.
The claimant’s submissions on non-economic loss state the claimant is “50 years young”.
Since the accident he has endured five years of disability and emotional turmoil.
He can no longer work, forced to give up all of his sporting activities, especially his beloved Master’s rugby league playing and coaching, lost significant muscle mass and lives in reduced circumstances. He requires intimate personal and domestic assistance from his family when he had always lived independently.
He has undergone surgery, and his treating orthopaedic surgeon, Dr Chin, and Dr Bodel have opined he will require bilateral reverse total shoulder replacements in his mid-60’s.
The claimant’s life expectancy is 84, so he may endure nearly half of his life with accident related disabilities and pain.
The claimant’s evidence showed he was devoted to sporting achievements and that he was particularly devoted to playing rugby league. In order to keep doing that he was committed to staying fit and strong. The accident extinguished that passion, along with his sense of self.
The insurer submits the claimant’s medical history before the accident is significant.
In particular there was a neck injury in 2008 after playing football, the hospital presentation in 2011 after a motorbike accident, right shoulder tenderness in early 2019, and when he complained of chest discomfort which had been on and off for six months.
The insurer refers to the Commission’s permanent impairment percentages as relevant to assessing non-economic loss.
The insurer submits the claimant retains some previous aspects of his pre-accident ability.
The VCC report describes the claimant being able to provide light assistance around the house, e.g. despite being unable to cut hard food he could manage some food preparation and steak cutting. The claimant’s ex-partner has to help with shopping.
He can still ride an exercise bike three days per week. I note the medical evidence does not refer to any lower body impairment arising from the accident.
Based solely on Medical Assessor Samuell’s certificate the insurer submits the claimant’s psychological condition is reasonably mild.
The suggested range of quantum for this head of damage is respectively $400,000 and $200,000.

Past economic loss

Claimant’s submissions

The claimant received workers compensation as income replacement up until 13 March 2025 at $326,151.36. This was based on a pre-accident average weekly earnings (PIAWE) of $1,100. He is entitled a Fox v Wood tax component of the wages already paid to him via workers compensation. This is $62,188.
The claimant’s employment history before the accident demonstrates he had worked in the transport industry for approximately a decade.
SCF’s payslip, dated 18 December 2019 demonstrates that his normal hourly rate as at the date of the accident was $37.69 an hour, which equates to $1,432 (gross) per week, based on a 38-hour week. This translates to $1,100 (net) per week in his hand.
Following the accident, the claimant had a week off work, losing $1,100.
After that week, the claimant returned to work with his then 14-year-old son as his assistant until his son returned to school the following year. The claimant ceased working in the week ending 7 February 2020. He has not returned to work and has been certified unfit for work since.
Between 17 December 2019 and 7 February 2020, the claimant missed approximately 27 hours of work (based on an average of 38 hours per week), which is $781 net loss.
His employer terminated his employment in March 2020.
From 8 February 2020 until 30 June 2020 (21 weeks), the claimant claims $1,100 (net) per week being the loss of $23,100.
After that the claimant adopts the figures of loss as calculated by Craig Martin, independent vocational capacity assessor, derived from projected earnings as a truck driver; see page 29 of his report dated 20 December 2024. Accordingly, the claimant claims the following net losses:
(a)    $1,182 in the FYE 2021 (52 week) = $61,464;
(b)    $1,207 in the FYE 2022 (52 weeks) = $62,764;
(c)    $1,210 in the FYE 2023 (52 weeks) = $62,920;
(d)     $1,213 in the FYE 2024 (52 weeks) = $63,076, and
(e)    $1,265 between 30 June 2024 and 10 April 2025 (41 weeks) = $51,865. (At date of this decision that is 54 weeks being $67,045.)
Therefore, the claimant’s total past net losses equate to $342,430 at the date of this decision.
Past loss of superannuation benefits is claimed at 11% of the net losses = $37,667.30.

Insurer’s submissions

The insurer submits the claimant’s employment history with his taxation returns and employment records suggests sporadic employment and an inconsistent history of earnings.
He has never earned at the level that he was before the accident. Further, he has never earned at the level claimed in the claimant’s submissions of $1,100 net per week and was not doing so at the time of the accident.
The insurer provided detailed submissions in respect of the claimant’s loss arising from the accident, which is summarised below.
Purkess v Crittenden (1965) 114 CLR 164, clarified the previous rule in Watts v Rake 34 ALJR 186, whereby the ratio was thought to be that once a claimant has established that the accident caused the injuries then the burden of proof moved to the tortfeasor.
In Glen v Sullivan [2015] NSWCA 191, the Court of Appeal reviewed the rule further.
In summary, the position can be stated as follows at [44];
“Where the plaintiff establishes a prima facie case that the incapacity has resulted from the injuries sustained in the accident, the defendant has the burden of adducing evidence to show that the incapacity would have come about independently of the accident, for example by reason of a pre-existing degenerative condition: … However, the burden of proving on the balance of probabilities that the incapacity was caused by the accident always rests on the plaintiff: …”
The rule in Graham v Baker (1961) 106 CLR 340 still applies. It is not merely sufficient for a claimant to demonstrate a diminished earning capacity, but also requisite for a claimant to prove that the diminution of earning capacity is or may be productive of financial loss.
The principles stated in Watts v Rake and Purkess v Crittenden must be understood in the light of the principles stated in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638.
Ipp JA (with whom Mason P agreed) summarised these principles in Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208, at [103]:
“(a)    In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring;
(b)     The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred;
(c)     The court must form an estimate of the likelihood of the possibility of alleged future events occurring; and
(d)     These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.”
Ipp JA then explained (at [104]-[107]) that:
“104. ... Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the 'disentangling' evidentiary burden on it of showing that part of the plaintiff's condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.
105. Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of "disentanglement" discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations - not proof on a balance of probabilities.
106. Without intending to give an exhaustive list of possibilities, it may be that, had the defendant's negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff's enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant's negligent act might have contributed to the plaintiff's ultimate condition.
107. Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant's negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.”
In assessing future economic loss for the purposes of s 4.7 of the Act, a claimant’s actual circumstances are to be considered. There is not to be a retreat to the statistics of average weekly earnings for claimants who have already demonstrated their degree of likely earnings (see Dyldam Development Pty Ltd v Jones [2008] NSWCA 56) (Dyldam).
Macfarlan JA, in Allianz v Kerr [2012] NSWCA 13 also stated:
“… awards in respect of future economic loss should wherever possible result from evidence-based calculations or estimates that are exposed in the decision-maker’s reasons. The award of a buffer that is not supported by an explanation of how and why the amount was arrived at should remain a last resort where no alternative is available.”

Pre-accident earnings

The claimant’s employment with SCF had only been around two months at the date of accident.
The claimant’s alleged lost earnings exceed what would be expected based on the earnings records before the accident.
Pay slips before and after the accident average $847.50 net per week.
The post-accident payslips up to 8 February 2020 show average net earnings per week were $879.75, which is essentially unchanged by this accident.
The claimant’s taxation records were referred to above.
Averaged over the 23 weeks the claimant was with SCF would amount to approximately $853 net per week.
The GP records before the accident noted that the claimant was unemployed and was stressed due to financial problems before he started with SCF.
The claimant’s taxation returns and employment records suggests he was sporadically employed and an inconsistent earner. Further, he has never earned at the level claimed and was not doing so at the time of the accident.
The insurer submits that $850 net per week should be the baseline for the claimant’s pre-injury earning capacity.

Post-accident work capacity

The claimant was able to continue working for a few months after the accident, despite his reported complaints.
As for the date that the claimant ceased work and/or was certified unfit, the insurer refers me to a physiotherapy AHRR from Macquarie Fields Physio dated 15 June 2020 noting that his full duties require him to carry 100kg on shoulders at times. He was on light duties then with 10kg lifting restriction (shortly before his surgery). It appears he was certified unfit after the shoulder surgery.
The payslips post-accident were not dissimilar. Workers compensation payments commenced in February 2020.
His GP’s certificates of capacity certified him unfit from 23 June 2020 onwards following surgery.
The insurer submits that despite EML paying him weekly loss of income benefits continuously from February 2020 until the statutory period expired, this insurer would have not done so. It argues the claimant was capable of returning to work in a sedentary or semi-sedentary role, during the five years that he has been off work.
After noting the claimant’s work history after leaving school Dr Mitchell examined the claimant’s reported neck pain, stiffness and headache and pain in both shoulders with radiation to the midsection of each arm.
Dr Mitchell opined that the claimant did not have full capacity for his arduous pre-injury duties, but he had a “current capacity for suitable work full time that would avoid any aggravation of the reported symptoms”.
The doctor’s list of restrictions that would enable the claimant to work were summarised above.
VCC’s report including a Functional Assessment of Ms Stewart and a Vocational Assessment Report and Job Match report of Mr Defina was also summarised above.
Both Ms Stewart and Mr Defina raised questions regarding the claimant’s presentation during the assessment, as Dr Bodel and Dr Mitchell did.
The insurer submits that there is compelling evidence to argue that the claimant has a greater level of capacity for present and future employment than he is indicating. The claimant’s contentions as to his level of incapacity to work should be treated with caution. The expert evidence should be favoured to the claimant’s reported symptoms.
The claimant should be capable of returning to work at least from the date of the VCC assessment, noting its conclusions, and those of Dr Mitchell, as to his capacity for full-time work hours in suitable employment.

Future loss of earning capacity

The claimant relies on Dr Bodel’s report dated 22 October 2024 to support the claim he has no capacity for work and that he will not return to any form of paid work on account of his injuries and ongoing disabilities.
Craig Martin’s vocational report dated 20 December 2024 supports Dr Bodel’s opinion after he assessed the claimant’s transferrable skills (or lack thereof) against his restrictions and suitable employment occupations and opined there were no suitable positions on the open labour market, and that he would remain unemployable in the foreseeable future.
Given the above, the claimant claims an average net loss of $1,600 per week until the age of retirement, which is an approximate mid-point between the net figures that Mr Martin reasonably opined the claimant could earn on the open market as a truck driver; see bottom of page 31 of the report. It also factors in CPI increases and promotional opportunities.
Accordingly, the claimant claims $1,600 (net) per week over the next 17 years. This equates to $964,480 ($1,600 x 602.8). When reduced by 15% for vicissitudes, the total claimed is $819,800.

The insurer submits the basis for the claimant’s alleged projected earnings figure of $1,600 net per week is unclear.
Mr Martin report opines that but for the accident the claimant’s most likely circumstances were to work full time in a role earning $1,092 net per week as a delivery driver or $1,221 net per week as a truck driver. Therefore, even at the high point of the claimant’s evidence the total loss would be $1,221 net per week, rather than the $1,600 net per week that is claimed.
Mr Martin also opined that the claimant was not capable of his pre-accident role and was essentially unemployable to retirement age due to the restrictions arising from his physical and psychiatric condition.
The insurer contends that the psychiatric evidence does not support the claimant having an ongoing incapacity to work.
Dr Newlyn opined that the claimant’s adjustment disorder would not prevent him from working full-time.
Medical Assessor Samuell also determined that “His inability to work, if it exists, is attributable to his physical rather than psychological state.”
The insurer submits that these reports should have weight in determining the claimant’s psychiatric level of work capacity.
The insurer submits that other experts are better placed than Mr Martin to comment on the claimant’s physical capacity.
Dr Bodel recently opined that the claimant is totally unfit for his pre-injury role and any work for which he has sufficient levels of education and expertise.
In his most recent report, Dr Bodel did not reiterate the comment the claimant could do light work up to 25 hours per week, but commented on the apparent lack of consistency in the claimant’s complaints and that Dr Bodel could not explain the decline in the claimant’s reported capabilities and range of motion.
The insurer wants me to rely on the first Dr Bodel’s report in respect of returning to work and wants to me to follow the second report in respect to Dr Bodel’s bemusement at the claimant’s shoulder condition deteriorating.
Similarly, regarding the psychiatric condition and despite it objecting to Dr Murphy’s report, the insurer notes that Dr Murphy, psychiatrist, reported it will be helpful for the claimant to look for part-time work that is low stress, where he could work alone and not interact with strangers.
The insurer submits the claimant’s evidence is not consistent with the alleged loss of earnings and being totally unfit.
Given these factors, the insurer submits that any expected future level of earnings could not go beyond the lower of Mr Martin’s two estimates being $1,092 net per week, should be adopted to assess loss of economic capacity.
Considering Dr Bodel’s initial opinion that the claimant is capable of working 25 hours per week in suitable employment, rather than a full 38 hour week the insurer submits that the claimant retains at least 2/3 of that earning capacity. He is losing $364 net per week based on that premise.
Extrapolating $364 net per week as to the claimant’s lost earnings for 17 years to retirement age (multiplier 603) less 15% for vicissitudes amounts to $186,568.20 plus loss of superannuation.
The insurer submits that its evidence supports a greater residual earning capacity than the claimant’s evidence.
The insurer relies on Dr Robin Mitchell’s report dated 11 February 2025 already summarised and VCC’s report dated 4 February 2025.
VCC’s Mr Defina’s job match report identified potential post-accident salaries for those roles, which were the same or greater than what he could earn before the accident.
The insurer refers to the claimant’s meagre earnings in his pre-accident role, and the claimant’s seeming inability to hold consistent employment or have a consistent work history.
Adopting the lowest reported salary of one of the VCC’s suitable employment options being a meter reader, at an entry level salary of $920 gross per week this would amount to $800 net per week. Those salaries are expected to increase with experience to $1,182 gross per week in the age 45 plus range, which is beyond $850 net per week.
The insurer concedes a loss of $50 net per week to retirement age (17 years), as a calculation of the claimant’s potential lost earnings, based on the lowest salary indicated by the VCC, when compared to the pre-accident earnings of $850 net per week.
The calculation is $50 x 603 x 15% vicissitudes, which amounts to $25,628 (rounded) plus loss of superannuation.

REASONS

Credit

The insurer submits his evidence should be treated with extreme caution due to the VCC report views that the claimant was misrepresenting his disabilities. It relies on inconsistent ROM as evidence of the claimant’s lack of credibility, despite the claimant’s explanations.
Noting the findings on causation by the Medical Review Panel on 25 July 2024 and Medical Assessor Nair that the degeneration in the claimant’s shoulders before the accident was asymptomatic and that the claimant was able to manage his work duties and sport without restriction before the accident. I do not give weight to Dr Antoun or A/Prof Shatwell’s opinion on causation in respect of the claimant’s current state or the level of disability they consider he should be displaying.
The insurer’s submissions also refer to the claimant serving six months in jail for assault in his early twenties, and a drink driving offence when he was 16 years old. There is also reference to a road rage event about a year before the accident that led to him being dismissed from a role. The claimant was frequently questioned about these events or referred to in the medico-legal examinations.
The claimant’s lay evidence is helpful, because it is based on longer multiple observations than an on average one-hour medical examination. Unless a claimant has the habit of keeping a daily and frank journal, lay witnesses who regularly interact with a claimant before and after an accident can provide relevant evidence to resolving facts of issue on an accident’s impact.
So is his treating psychiatrist Dr Nepal’s report because he saw him five times over 2023-2024.
Weighing against the insurer’s evidence and submissions on credit is that despite
Mr Washbourne having come in contact with the law as a young man he did not continue in that vein and has no convictions for dishonesty.
I also note that despite him being on the roads continually as a commercial driver for at least for the last 10 years there is no evidence of traffic offences.
His friends and family in their statements also speak positively of his character as well as the negative changes in his demeanour and physical ability since the accident. None of these witnesses were questioned. Their evidence carries more weight than the VCC’s opinions on his honesty or about him not having muscle wastage indicating he was inauthentic about his disabilities.
Mr Washbourne was considered an impressive physical specimen before the accident, which is referred to in his evidence, lay witness impressions and the facts that he was still playing prop (which is the most important and demanding position in the Rugby codes) and carting pieces of meat close to his body weight. Although still over 80 kg Mr Washbourne had suffered, what was for him, an exponential for him loss of muscle, while in the general population it may not account for much.
I discussed Mr Washbourne’s protective posture with insurer’s counsel, in particular how he has maintained that in other examinations. She did not disagree with a hypothesis that it had become a habit. I have also noted that none of the evidence referred to it as inauthentic or even suggests therapy to help him adopt posture that could make his disability less obvious.
The VCC report does not refer to the claimant’s early attempts to rehabilitate, which consistently marked him as doing his best to return to full fitness.
The VCC report assessed Mr Washbourne as authentically of low intelligence. That is not contradicted. I find it is probable that he would not have the mentality to successfully maintain a deceit for over five years under the continuous scrutiny of two insurance companies and certifying doctors.
The Victorian Court of Appeal case of Stevens v DP World Melbourne Ltd [2022] VSCA 285 at 44 (Stevens), highlights that if a party asks a tribunal to make findings on credit, then a tribunal may – where the claimant’s mental injury or other relevant factors are part of the facts – consider whether these could impact on how that claimant gives evidence.
Courts and tribunals should contemplate how those factors can impact on a witness’ ability to exactly recall what has occurred or is occurring.
Also, the insurer relies on Dr Defina’s serious allegation of fabrication and exaggerating his disabilities with the intent to return to work when this damages claim has been resolved. I would require more evidence such as consistent observations outside the examination environment and evidence he was able to conceptualise operating in the roles Defina opined were suitable before I could be comfortably satisfied that allegation was made out.[1]
[1] Briginshaw [1938] HCA 34
Accordingly, it is reasonable in this case to hypothesise that a lack of reliability or inconsistency could have been influenced by Mr Washbourne’s explanations about his varying pain levels, lack of sophistication, moods, medication and time passing since the accident rather than systematic attempts to mislead.
Considering that I found Mr Washbourne was doing his best to be truthful and consistent in his evidence and when he was examined, which allows me to accept the impacts and disabilities he describes.

Damages

Non-economic loss

The fundamental principle of assessing or awarding damages to an injured person is that a tribunal should assess damages so that they represent no more and no less than a plaintiff’s actual loss: Livingstone v Rawyards Coal Co (1880) 5 App Cas 25, Lord Blackburn at [39].
In personal injury matters, because it is difficult, if not impossible, to restore an injured person to the health they enjoyed before the injury, the compensatory principle has been qualified for non-economic loss damages by the phrase “so far as money can do so”: Robinson v Harman [1848] All ER Rep 383.
Section 1.4 of the MAI Act defines non-economic loss as:
(a)    pain and suffering;
(b)    loss of amenities of life;
(c)    loss of expectation of life, and
(d)    disfigurement.
The law recognises that an award for non-economic loss cannot be perfect because it cannot be calculated precisely like other forms of damages.[2]
[2] Lee Transport Co Ltd v Watson (1940) 64 CLR 1 at [13]– [14], Dixon J.
The NSW Judicial Commission’s bench book on damages summarising the authorities on compensation for non–economic loss[3] and Luntz^.[4] are helpful in assessing these damages.
[3] Luntz, Assessment of Damages for Personal Injury and Death, 5th Edition (2021) LexisNexis.
There is a statutory cap of $645,000 that limits the amount of non-economic loss damages. However, a tribunal cannot calculate the entitlement based on a percentage of that maximum amount, and there is no proportionality.[5] The percentage of impairment is not relevant to assessing the quantum of non-economic loss damages.
[5] Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199 – as per Heydon JA at [39].
Mr Washbourne submitted the appropriate assessment is $400,000, and the insurer submitted $200,000.
In respect of the attitude that accounts vary about of how this accident happened and causation, it is reasonable to give weight to the circumstances.
“Accident” is used throughout all the material submitted in this dispute except for when A/Prof Shatwell refers to “assault” as a purported event. Assault is the more accurate description.
The material in the police brief demonstrates the insured driver deliberately propelled his vehicle forward to strike the claimant in the midst of carrying out his work. The claimant was carrying out his work under pressure with a heavy piece of meat on one shoulder and was tackled into the tarmac of the road. It was an objectively frightening and arbitrary event. He was going about his business and could not expect this disproportionate response from the insured.
It was unhelpful that his employer did not recognise the gravity of what happened and pressured the claimant to reject medical assistance and continue working. The police treated the act appropriately and prosecuted the insured based on what they knew of the event and the claimant’s state based on the statement the claimant gave to the police two days after the accident.
Reading the police file I am impressed by the insured’s intent and criminality. I noted the penalty was light, but the magistrate did not have medical evidence before him in August 2020 when he convicted the insured so he was not aware of the impact that the insured’s conduct had on the claimant and continues to have.
I also consider the fear created and suddenness of the events carries weight in respect of the post-traumatic stress disorder symptoms.
There has been considerable and continuing physical pain and suffering from his bodily injuries. The claimant alleges he also suffers mental anguish and unwelcome intrusions arising from post-traumatic stress disorder symptoms, anxiety, and depression. In addition, there is evidence of a significant loss of amenities and enjoyment. His ex-partner says his personality has changed for the worse.
The insurer disputes that the claimant’s psychological condition is serious and is no more than an adjustment disorder. Whether disabling psychological illness exists should be dealt with under this head of damage as well about his work capacity.
The claimant refers to seeking psychological treatment and medication from psychiatrists since the accident.
The lay witness statements described the claimant exhibiting a change of personality, anguish and emotional turmoil since the accident. The claimant speaks of his loss of self and feeling suicidal.
Five years have passed since the accident. The accident injured Mr Washbourne in frightening and painful circumstances. Since then, he has experienced nightmares and flashbacks coupled with often severe physical pain.
The psychiatrists opinions are summarised above.
Before the accident the claimant led an uncomplicated life where he worked hard as much as he could, worked on his fitness, socialised with his family and friends and play sport. He was lived independently, while remaining close to his family and partner. Based on his evidence and the lay witnesses, along with infrequent GP visits about his mental health dealing appropriately with objectively stressful episodes such as the death of his mother or unemployment he appeared to have a mostly happy and active life before the accident. The accident has taken that away from him.
Regarding the depressive disorder and episodes along with the anxiety the preponderance of medical evidence supports that diagnosis and based on his statements and presentation in this assessment that the claimant is continuing to suffer. During the assessment he genuinely appeared sad and desolated about the state of his life. He also expresses that he feels cut off from people because he is scared of reinjuring himself in crowds, stinks from not being able to clean himself properly and cannot sexually express himself.
The medical evidence and his presentation also supports anxiety about his future.
In terms of the claimant’s physical pain, he consistently records high and continuing levels of shoulder pain. He has adopted a protective posture, which draws attention to his discomfort. The insurer suggested this was performative posturing but there is no evidence of him moving normally to counter the frequent mentions of this posture in the reports or his explanations for adopting it. The VCC CCTV observations only said it was not as bad in one instance.
The claimant suffers humiliation at not being able to clean himself properly when he uses the toilet. He feels shunned because he has been told he constantly smells of ordure. He can access a shower to wash himself at home, but this remains a problem outside of that.
Hopefully he can mitigate having to shower after toileting at home by installing the electric toilet seat with plumbing that the OT and doctor supported to wash himself properly. It must be accounted for in assessing loss of amenity and enjoyment of life.
There were no suggestions in other evidence on how he could mitigate this problem.
The pain and the mental conditions impact his capacity to sleep soundly, excluding him from considerable benefits for his daily activities.
Being unable to sleep soundly due to his accident is a severe disability. It is an important biological function essential for life.
Vital functions during sleep help the body in physical recovery and repair, support brain development, cardiac function and body metabolism, support learning, and improve memory and mood. Mr Washbourne will find it hard to mitigate his daytime condition and exercise residual work capacity if he cannot achieve optimal sleep.
There are multiple mentions in his evidence of struggling with pain, physical limitations, ruminations, anxiety and being overwhelmed, lack of sleep, unable to play with children and grandchildren, loss of social life, loss of manhood, suicidal thinking, and nightmares. This has a considerable impact on his pain and suffering and loss of amenities.
The claimant is still taking strong pain and psychotropic medication and has sought counselling and therapy. It appears he is managing, as far he can, his pain and anxiety with frequent rests, relying on help from others and reduced activity.
The pain medication is continuing to mess with his digestive system.
He was frank in his statements and before me about diminished intimacy with his now
ex- partner due to his pain and smell. He told me there was no romance in his life. Continuing pain and depression with bad odour must derogate from any happy intimate connection.
Reading the lay witness statements, it was obvious before the accident that people thought of Mr Washbourne as energetic and generous with his presence. He had reasons to be optimistic he could carry on as he had been before his accident, but now he is chronically tired, in pain, sleep deprived, smells bad, withdrawn, anxious and pessimistic.
Mr Washbourne talks of suicide due to the sequelae of this accident, but there was no evidence that his treating doctors assessed whether these injuries would shorten his life. He has raised it so it has some weight.
I recognise that the accident caused substantial loss in respect of his participation in sport generally and in particular rugby league. The loss of being able to continue playing Masters rugby league, his place in a regular team, coaching juniors, losing the opportunity to travel with the sport he has loved since he was a boy is particularly painful to Mr Washbourne.
He has the prospect of further surgery to replace his shoulder joints. He risks a poor outcome and infection. The evidence did not address whether this will result in a complete resolution of his condition, but it is still a decade away so the pain remains indefinitely.
Disfigurement is relevant to Mr Washbourne’s case. His photos, statements and his lay witnesses all notice his loss of musculature demonstrate he has lost muscle bulk.
As well as affecting his earning capacity this loss of muscle has impacted his sense of wellbeing and he regards it as disfiguring.
Regarding the scarring, the photos show obvious scarring that when wearing a tank top or bare chested is clearly visible and prominent.
Examining the evidence summarised above, this is a case where all aspects of non-economic loss are engaged.
I assess the appropriate past and future damages for the claimant at $383,000 for his non-economic loss.

Past economic loss

In cases such as Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Husher v Husher (1999) CLR 138, the High Court has confirmed that the fundamental question to be determined in a case such as this, is whether a claimant has sustained a loss or diminution in his earning capacity, and if so whether that loss or diminution will result in economic loss. In calculating any such loss, I must have regard to the provisions of s 4.7 of the MAI Act.

Summarising a key principal explained in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (Cervantes) calculating past and future economic loss involves comparing a claimant’s accident related circumstances, and the likely circumstances if the accident had not happened. Where there is loss of earning capacity, a tribunal must consider whether such a loss still might have occurred “independently of the accident.” [33]
Before the accident Mr Washbourne was unrestricted in his earning capacity based on the work he demonstrated he could do and still playing rugby league. The evidence showed he was a consistent worker and earner when he was in work, but it could be occasionally sporadic and spread across various employers.
The claimant’s lifestyle before the accident was demonstrated with statements and photographs shows him participating in sport, taking holidays, interacting and being social. While this is evidence of a loss of amenity, it also supports his contention that he was consistently employed in the years before the accident because he could financially support that lifestyle. The work history also indicates his preference for working around Sydney, rather than undertaking more potentially lucrative work like long distance truck driving .
His employment was modest, and based on his level of education and life experience it was likely to remain so. It appeared because of his willingness to stay fit, take care of his body and undertake hard physical labour along with his HC licence that he was valuable and could have continued to find work.
His pool installing friend Ray Siggelkow had been in a position to observe him for over 30 years as a manual labourer and marked him as consistent in his ability to do that work. That witness talks about his own longevity in that type of employment, which adds weight to the claim the claimant could have continued to do that, too.
I find it was most likely that due to his approach to maintaining his physical fitness that but for the accident Mr Washbourne would have continued to work as a meat carter or in hard manual labour or truck/delivery driver. It is clear that he intended to keep working and earning money as long as he was able to.
I prefer the evidence that supports the finding that this accident intervened to cause
Mr Washbourne to have effectively totally lost his earning capacity immediately after the accident to date and continuing.
I note he attempted to return to work but he could only manage driving the truck with his son as his unpaid assistant loading and delivering. Apart from the VCC the rehabilitation providers note that the claimant approached his rehabilitation enthusiastically, but eventually the treating doctors including his treating psychiatrist and Dr Bodel let him know he would never return to work that he was educationally and experientially suited for.
Mr Washbourne has been unable to return to his pre-accident work regime. He claims he is permanently unfit. There are medical opinions, which attest he could work full time in a suitable position, but the claimant’s vocational evidence, his statement and oral evidence show his injuries still prevent him returning to the only type of work which he is suited for.
In terms of measuring that loss McColl JA in Morvatjou v Moradkhani [2013] NSWCA 157 (Morvatjou) emphasised that while documentary evidence of actual income was the most helpful guide to assess loss of earning capacity, she also said lacking documentation did not necessarily disqualify a plaintiff from recovering damages based on evidence of actual earning capacity.
The lack of consistent earnings records before the accident makes this exercise less certain. I accept Mr Washbourne was doing his best to be accurate when he said he had always been working before the accident but he did not really know what he was earning. He worked full time when he could. He was not mindful whether his earnings matched the average weekly earnings of an employed driver or meat carter.
I agree with the insurer’s submissions that the tax returns show it is reasonable to accept that Mr Washbourne was not earning $1,100 consistently. For various reasons the claimant had a fluid work history, which meant that his earnings could be sporadic, but that does not indicate a lack of reliability as a manual labourer or driver.
He shows resilience throughout his work and sporting life. The records show he rarely relied on social security. He keeps turning up at different work places. In some cases, he may have been paid cash, which would have helped his claim of loss of economic capacity, but he did not claim that.
He consistently works in jobs where there is an impossible to cross gap between the power of employers and workers. Wages are lower and jobs are less secure in that environment. In countries where jobs were traditionally allocated by caste working with meat was only considered suitable work for those of the lowest or no caste, and while Australia has never had a formal caste system Mr Washbourne’s job status is unquestionably low.
He is a throwback to the era when rugby league players minded the door at pubs and nightclubs, drove brewery trucks or worked as storemen to earn a living and playing the game only supplemented their earnings or an even earlier time when men had to show up daily at the Sydney docks to vie for casual jobs man handling goods in and out of ships.
I will deal with the insurer’s argument the claimant could have been working over the last five years below under residual earning capacity.
The claimant wants to be compensated at $1,100 net per week from 8 February 2020 until 30 June 2020 (21 weeks).
After that the claimant wants me to adopt the figures of loss calculated by Mr Martin, independent vocational capacity assessor, derived from projected earnings as a truck driver. Mr Martin’s report also provided a schedule for delivery drivers, which is a slightly reduced figure. For the future loss the claimant submits $1,600 is appropriate to deal with the claimant’s loss. That figure accounts for future inflation and loss of opportunity for better work or promotion.
It is appropriate to adopt the lower end of the range Mr Martin provides for delivery drivers, because doing so acknowledges the insurer’s evidence showing sporadic employment and Mr Washburn’s consistently low earnings.
I have considered Dyldam and consider the evidence presented supports a finding that the claimant’s earnings would have been consistently at the lower end of average weekly earnings in the transport industry. Basing his economic loss on the average for delivery drivers earnings acknowledges the claimant’s earnings most likely would have been diminished due to occasional gaps between jobs and occasionally boosted with opportunities to earn in a higher range as a truck driver or in casual labour.

Historical Earnings

Earnings per week

Month

Year

Gross

Net

August

2019

$1,126

$923

August

2020

$1,181

$960

August

2021

$1,237

$1,018

August

2022

$1,292

$1,055

August

2023

$1,347

$1,093

August

2024

$1,400

$1,128

December

2024

$1,414

$1,138

Adopting the Martin data on average weekly earnings for delivery drivers I calculate the following net losses:
(a)    I will allow the loss for one week claimed at $1,100 for the week after the accident because based on his payslips the claimant’s hours and hourly rate had increased. It was also leading up to Christmas and January events so demand for deliveries would increase;
(b)    between 17 December 2019 and 7 February 2020, the claimant missed approximately 27 hours of work based on an average of 38 hours per week at $29 per hour($1,100/38 hours = $29 rounded up). $783 over that period;
(c)    I revert to the Martin vocational assessment historical earnings from
8 February 2020 until 31 July 2020 (25 weeks x $923=$23,075);
(d)    $960 until 31 July 2021 (52 weeks) = $49,920;
(e)    $1,018 until 31 July 2022 (52 weeks) = $52,936;
(f)    $1,055 until 31 July 2023 (52 week) = $54,860
(g)    $1,093 until 31 July 2024 FYE 2024 (52 weeks) = $63,076;
(h)    $1,128 between 1 August 2024 until 31 December 2024 (22 weeks) = $24,816, and
(i)    $1,138 between 1 January 2025 and 11 July 2025 (27 weeks) = $30,726.
$301,292 is the total past economic loss. Applying 11% to calculate lost superannuation yields $33,153.12.
The loss of earning capacity is continuing.
The insurer submits that the s 4.5(1)(d) of the MAI Act damages are $62,188.

Future economic loss

Residual earning capacity

Due to his accident-related injuries' physical and psychological impacts Mr Washbourne claims he cannot work as he hoped.
It is most likely that he has and will suffer future economic loss due to his injuries, because even at the best he has done since the accident, he has not returned to earning capacity despite having worked hard to rehabilitate.
The evidence supports finding that if the claimant had not been in this accident that he would have continued working as a labourer delivery driver or truck driver.
He claims he does not have the experiential and educational background to deal with anything but manual labour which is the only type of work he is suited for.
Mr Washbourne has proved his economic loss; see Todorovic v Waller (1981) 150 CLR 402 at [412]-[413], but it was reasonable for the insurer to assert that the claimant has a residual earning capacity and provide evidence of what he can do and what jobs were still open to him.
The insurer asserts that most the claimant can justify is one third of his future loss of economic capacity. This is based on the VCC and Mitchell opinions that the claimant can access roles that are suitable in terms of appropriate physical demands.
The claimant’s case is that he does not have any work capacity due to his injuries and related disabilities. He claims he cannot do the work that the insurer alleges would be suitable as described in the VCC and Mitchell reports. The VCC vocational assessment report identified full time career paths as a telemarketer, delivery driver, metre reader or parking inspector.
The claimant relies on the report from Work Together's Craig Martin which says he has not hope competing in the open labour market to obtain those, along with Dr Bodel’s and
Dr Chin’s reports who say he can never resume his previous type of work.
He also relies on his statements and evidence that he cannot do any work that is suggested because of pain, not being able to drive and because he does not have the capacity to do those roles which are outside his experiential and educational background.
I note the insurer’s reference to Tran v Younis (2006) NSWCA 188 and evidentiary onus being on the plaintiff to satisfy me he has no residual earning capacity.
It is hard to see how the claimant would have and will practicably moved over the last five years into alternative work that is less physically demanding, because the suggested roles are more reliant on problem-solving and information gathering as the suggested jobs require.
His entire work persona is tied up with being strong, athletic and physically capable. That is the entirety of his experiential and educational history. It was possible that the railway role he held as a very young man involved clerical skills, but that ended disastrously.
Although the VCC report says he is waiting for this claim to resolve and going back to work, the preponderance of medical evidence is that he could never do what he used to do, and the evidence points to him not being able to switch to the allegedly suitable jobs.
Despite having the chance over the last 30 years to seek other work he has only sought work that requires the application of strength and intense physical labour.
The rehabilitation reports all note that the claimant worked diligently to return to full fitness, but Dr Amirabadi’s report dated 11 August 2022 referring to the claimant’s “boom/bust” mentality is especially pertinent. He was only interested in being able to work at heavy physical labour, rather than alternative suitable duties.
I took that to mean along with other evidence about his rehabilitation evidence that he was not workshy but incapable of conceptualising earning a living doing anything but working as he had always worked.
The VCC report’s opinion on the claimant’s intelligence is also pertinent to this point. When Mr Washburn denied the insurer’s counsel proposition that he is maximising his disabilities for the purpose of this claim, I accepted his denial, because he is not sophisticated enough to dissemble over the last five years to two insurers and various doctors and his genuine intention was to return to the type of work he is suited to.
The insurer’s evidence must support finding that the claimant has a residual earning capacity that he is practically capable (rather than theoretically capable) of exercising.
The insurer has not provided evidence that deals with the following:
(a)    apart from a concession that the claimant would need a staged return to work the evidence the insurer does not deal with how the claimant would deal with seeking concessions from potential employers to make up for his permanent functional and psychological disabilities. VCC, Dr Mitchell and Dr Murphy list in their reports what would have to happen to make returning to work possible but do not deal with extensive negotiation with potential employers and overcoming the prejudice against the claimant for his disabilities;
(b)    the submissions and report do not deal with how he would manage his functional and psychological conditions if his work required him to go outside the restrictions that all the doctors agree he would need. Also, nothing addresses how he would retain full-time employment if he inflamed those conditions, and
(c)    there are no strategies that address how Mr Washbourne would fare when competing with non-disabled applicants in the open labour market for full-time work, particularly after considering Dr Mitchell’s list of restrictions.
I am not satisfied that that Mr Washbourne could be employable on a sustained basis because:
(a)    the broad consensus of medical and lay evidence supports the claim that the accident has left Mr Washbourne psychologically and physically disabled and that each impact on the other;
(b)    the continuing pain, depressive illness and lack of sleep would wear down Mr Washburne emotionally and would reduce his capacity to deal with potential employers, colleagues and customers. This will impair his capacity to market himself to get and maintain any job. His reliance on public transport would also affect his ability to travel to meet and market to potential employers;
(c)    potential employers would need to make allowances for him, including allowing additional time off work, providing suitable work, handling his irritability, boosting his reduced confidence, and assisting his limited capacity to perform physical tasks;
(d)    he no longer drives due to pain from his injuries. That would be necessary to perform all of the tasks VCC identified except telemarketing;
(e)    his ability to work full-time consistently relies on Mr Washbourne's psychological and physical conditions aligning enough so that he feels well enough to apply himself to his tasks, and
(f)    suitable full-time work would have to be available. Mr Washbourne would still be limited because his capacity to accept work would depend on appropriate work being available and being well enough to get that work.
I am satisfied that there is no more than a negligible chance that Mr Washbourne could find suitable full-time work over the next 17 years because:
(a)    despite an established work ethic, he does not have in demand skills and training;
(b)    although he has shown resilience and a can-do attitude in terms of seeking rehabilitation despite the physical pain, he has not recovered his previous physical fitness, and
(c)    I can give weight to Dr Newlyn’s and Medical Assessor Samuell’s opinions that while his pain is operative his psychological condition will not ease.
Dr Mitchell does not agree that the claimant is unable to drive. However, given the claimant’s lack of sleep, his reliance on strong pain killers including CBT and general disability I find that it is reasonable to accept that the claimant could not return to driving a car, or be on the road constantly as a commercial truck driver or delivery driver.
In this case it is apparent that in making a practical assessment of
Mr Washbourne’s chances of obtaining and keeping a real job or in his case to pick up regular work with various employers, which is accessible to him, is low to negligible, see Mead v Kerney [2012] NSWCA 215 and South Western Sydney Local Health District v Sorbello [2017] NSWCA 201.
I am not satisfied that there are any favourable vicissitudes that mitigate his accident-related disabilities.
I am not satisfied he would be able to work to 70 years old because of the nature of the work. There are no submissions I should apply a higher rate for vicissitudes given the claimant’s customary work habits so I am satisfied it reasonable he would be able to remain employed until the statutory retirement age with the usual allowance.

Loss of opportunity

This was not developed in the claimant’s case. Considering the chances of the claimant being promoted I do not accept that aspect of the claimant’s claim because there was no evidence that demonstrated Mr Washbourne moving up in any organisation.[6]
[6] Malec.

Calculations

Applying the current net average weekly earnings for delivery drivers at this time I calculate the future economic loss as follows:
· 17 years at 602.8 x $1,138 = $685,986.40 x 0.85 = $583,088.44, and
· Super $583,088.44 x 14.56% = $84,897.60.
Section 7.36 (1) (b) of the MAI Act requires me to assess the damages for the insurer’s liability that a court could award.
I assess the damages for this claim based on the above findings:

Non-economic loss

$383,000

Past loss of earnings

$301,292

Past superannuation

$33,153.12

Income tax on statutory benefits

$62,188

Future loss of earning capacity

$583,088.44

Future loss of superannuation

$84,897.60

Total Damages Assessed:

$1,414,619.24

The claimant’s damages will be reduced by $375,451.36 representing the total that is the insurer must pay to Employers Mutual Ltd Workers Compensation under an indemnity arising under s 151Z(1)(d) of the Workers Compensation Act 1987. This is consistent with what was recorded in the insurer’s damages submissions.
I note the parties’ submissions that this indemnity does not impact on calculating costs.

Costs and disbursements

I refer to the claimant’s schedule of disbursements and the parties helpful submissions. I have assessed the claimant’s costs and disbursements in accordance with the attached damages and costs calculator.
The costs calculated based on the MAI Regulation 2017 on the above amount of damages plus disbursements claimed is $99,459.42.

Historical Earnings
Earnings per week
Month	Year	Gross	Net
August	2019	$1,126	$923
August	2020	$1,181	$960
August	2021	$1,237	$1,018
August	2022	$1,292	$1,055
August	2023	$1,347	$1,093
August	2024	$1,400	$1,128
December	2024	$1,414	$1,138

Non-economic loss	$383,000
Past loss of earnings	$301,292
Past superannuation	$33,153.12
Income tax on statutory benefits	$62,188
Future loss of earning capacity	$583,088.44
Future loss of superannuation	$84,897.60
Total Damages Assessed:	$1,414,619.24

[2025] NSWPIC 334

10 July 2025